Aug 02, Colombo: An erudite law scholar has recently briefed the United States Congress on the Legal avenues to prosecute Sri Lanka's Defense Secretary Gotabhaya Rajapaksa for war crimes.

Ryan Goodman, a Professor of Law at NYU School of Law in New York and the co-editor-in-chief of Just Security, at a congressional briefing earlier this month on issues of accountability in Sri Lanka, has highlighted the various laws that might assist the U.S. Justice Department and other agencies in prosecuting a US citizen, Gotabhaya Rajapaksa for war crimes.

In his recent presentation titled "Road Map II: Legal Avenues to Prosecute a U.S. Citizen for War Crimes - The Case of Gotabaya Rajapaksa", Goodman says Defense Secretary may also be guilty of witness tampering.

In an earlier presentation the legal scholar has described some of the evidence in the public record about Rajapaksa's alleged involvement in mass war crimes-for which the U.S. government is interested in seeking accountability.

Road Map II: Legal Avenues to Prosecute a US Citizen for War Crimes-The Case of Gotabaya Rajapaksa - By Ryan Goodman

Wednesday, July 30, 2014 at 1:13 PM

This is the second post arising out of a presentation I made at a congressional briefing earlier this month on issues of accountability in Sri Lanka. The analysis below is also drawn from my opening remarks, and the further refinement of my ideas in light of discussions following the briefing.

[The first "road map" dealt with more general issues of accountability in Sri Lanka: "Road Map I: What More Congress (and the Administration) Can Do to Promote Accountability in Sri Lanka"]

Here I highlight the various laws that might assist the Justice Department and other agencies in prosecuting US citizen, Gotabaya Rajapaksa. In another post back in May, I described some of the evidence in the public record about his alleged involvement in mass war crimes-for which the US government is interested in seeking accountability.

Sometimes the cover-up is more easily proven than the crime. And Gotabaya may also be guilty of witness tampering. At the end of this post I therefore include a detailed, "Timeline: Was US Citizen Gotabaya Rajapaksa Involved in Witness Tampering in a US War Crimes Inquiry? You Decide."

The following analysis may be helpful to members of Congress as well as the administration. The Justice Department and other agencies are not able to comment on ongoing investigations. Accordingly, it would be helpful, I imagine, if members of Congress simply sent a letter to relevant offices within the administration expressing interest and hope that they will pursue with full rigor any information and all legal avenues that establish criminal or civil liability for the most serious violations of US federal law by individuals subject to our jurisdiction.

So, what legal avenues might be available to the administration in the case of Gotabaya?

A. Justice Department

1. Criminal Liability: War Crimes Act

As discussed in previous posts by Beth Van Schaack (here) and by me (here), the most obvious federal criminal statute is the War Crimes Act of 1996, which applies to U.S. citizens like Gotabaya.

2. Civil/criminal liability: Civil RICO

If there were insufficient evidence for a criminal indictment (e.g., intercepts that could not be produced at trial), the Justice Department could also consider pursuing civil liability. Consider, for example, Civil RICO - a vehicle for addressing organized criminal activity including international crimes.

Here is a sample of predicate offences (i.e., forms of "racketeering") which might apply to Gotabaya:

1) Torture committed by a US citizen abroad of foreign nationals [18 U.S. Code § 2340A]

2) Serious bodily harm or murder of any Sri Lankan with (dual) US nationality committed outside the United States [18 U.S. Code § 2332]

3) Tampering with a witness or an informant [18 U.S. Code § 1512]

4) Retaliation against a witness or an informant [18 U.S. Code § 1513]

The last two on the list deserve elaboration with respect to how they might apply to Gotabaya. For that purpose, see the Timeline below.

[Of course these predicate acts for the purpose of RICO could also be prosecuted as independent charges under federal criminal law. The purpose of the present analysis is to identify potential civil liability, to which RICO lends itself.]

B. Justice Department and other agencies

1. IRS: Tax evasion

The Al Capone strategy: It may be worthwhile to investigate Gotabaya's assets compared to any tax documents that he might -or might not - have filed with the IRS as a US citizen living abroad.

As with past successes in similar cases (see also here and here), the government might prosecute Gotabaya for failure to disclose material information-involvement in past crimes-in his application for U.S. citizenship.

The key here is conduct prior to his acquisition of citizenship. For example, consider that in December 2012, excavators uncovered a mass grave in the Matale district dating back to the Sri Lankan Army's counterinsurgency operations in the late 1980s. What has that to do with Gotabaya? He was Coordinating Officer of the Matale District and the Commanding Officer of the 1st Battalion, Gajaba Regiment during the late 1980s.

In sum, the menu of options for prosecuting Gotabaya is not short. Now let's turn to the timelin ...

Timeline: Was US Citizen Gotabaya Rajapaksa Involved in Witness Tampering in a US War Crimes Inquiry? You Decide

1. May 18, 2009

Gotabaya may have ordered the commander of the army's 58th Division to execute all surrendering members of the LTTE leadership at the close of the civil war (widely known as the "white flag" incident and discussed in State Department reports to Congress).

2. October 28, 2009

Sri Lanka's then-Army Chief Sarath Fonseka (who happens to be a long-term permanent resident of the United States) was in the United States on a personal visit. He was contacted by the Department of Homeland Security to schedule a special interview and was reportedly told by the DHS that "the intention behind the request for the interview is to use him 'as a source against human rights violations done by Secretary/Defence.'" The interview was scheduled for November 4. [See also here]

3. November 2, 2009

In person and in an aide memoire, Sri Lanka's Foreign Minister told the US Ambassador in Sri Lanka that the interview should not take place and that "the Department of Homeland Security should forthwith desist from any endeavor in this direction."

4. On or before November 4, 2009

Fonseka left the United States before the scheduled interview.

5. December 13, 2009

In an interview with the newspaper The Sunday Leader concerning the white flag incident, Fonseka stated that Gotabaya had given the order on May 18, 2009 that "they must all be killed."

6. December 14, 2009

Fonseka confirmed and confided the same information about Gotabaya to the US Ambassador.

7. February 8, 2010

Fonseka made a statement that he was prepared to testify in international courts about the war crimes. As the BBC reported:

"Gen Fonseka had said he was prepared to give evidence in international courts on any war crimes charges brought in relation to the civil war. 'I am definitely going to reveal what I know, what I was told and what I heard. Anyone who has committed war crimes should definitely be brought into the courts,' Gen Fonseka said."

Later that day Foneska was arrested by military police (under the jurisdiction of Gotabaya).

8. February-May 2010

The Sri Lankan military brought court martial proceedings against Fonseka. The government also filed a separate civil charge against Fonseka on the ground that he had incited unrest due to his interview with The Sunday Leader.

9. May 5, 2010

Speaking to reports inside Parliament, Fonseka stated: "I will go out of my way to expose anyone who has committed war crimes;" "I will not protect anyone, from the very top to the bottom;" he said the government was "hell bent" on silencing him. [Agence France-Presse]

10. May 6, 2010

In an interview with a national newspaper, Gotabaya reacted to Fonseka's willingness to assist an international war crimes investigation. Gotabaya stated: "Any Sri Lankan promoting an agenda which is detrimental to the country is nothing but a traitor," he referred to Fonseka's effort to fast track a "sinister campaign" in supporting an international war crimes probe, and he said such tratiors deserve capital punishment.

To this day, Gotabaya's interview is proudly displayed on his Department of Defense's website with the title, "Traitors should be given Capital punishment.' [This is also consistent with another statement by Gotabaya to the BBC, "I am not allowing any investigations in this country. There is no reason. Nothing wrong happened in this country."]

11. June 6, 2010

In an interview with BBC's Hardtalk, Gotabaya was told that Fonseka said he would testify against Gotabaya before an independent war crimes investigation. Gotabaya responded:

"He can't do that. He was the commander.... That is a treason. We will hang him if he do[es] that."

[also discussed in State Dep't report to Congress]

12. November 18, 2010

A Colombo High Court found Fonseka guilty of spreading the "white flag" rumor, which "could arouse communal feelings," and sentenced him to three years' imprisonment.

[The State Department's report suggests the trial was illegitimate]

13. May 21, 2012

Fonseka is released from prison.

14. Now

You decide. Is the case against Gotabaya worth pursuing?

My take: The US government has poured its credibility into promoting accountability in Sri Lanka. The United States now cannot afford to stand by when its own citizen is directly interfering with prospects for independent war crimes investigations.